Rowe v. Eggum
| Decision Date | 27 December 1938 |
| Docket Number | 7840. |
| Parties | ROWE v. EGGUM et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Fourth District, Ravalli County; Albert Besancon, Judge.
Action by Francis C. Rowe against Catherine Eggum and others for specific performance of a contract. Judgment for plaintiff and defendants appeal.
Affirmed.
Geo. T Baggs, of Stevensville, J. D. Taylor, of Hamilton, and John A. Matthews, of Helena, for appellants.
Sam D Goza, Jr., of Helena, E. C. Kurtz, of Missoula, and S. C. Ford, of Helena, for respondent.
This action seeks relief in the nature of specific performance of a contract between plaintiff and Mary J. Williamson, whereby the latter was alleged to have agreed not to change a will she had made and delivered to plaintiff, in which she devised and bequeathed her property to him in consideration for services to be rendered by him in caring for her during her lifetime. The case was tried to the court sitting without a jury, resulting in a judgment in favor of plaintiff. Defendants have appealed from the judgment.
The evidence in many respects was conflicting. The court in the main adopted findings in conformity with the evidence submitted by plaintiff. The finding therefore reflect the facts of the case as revealed by the evidence, viewed in the light most favorable to plaintiff. Those findings, in substance, are as follows:
The plaintiff was reared in the home of Mary J. Williamson from the time he was seven years of age until he arrived at maturity, and during all of this time he was treated by her as a son. During the month of November, 1923, with the consent of Mary J. Williamson, plaintiff went to California and there obtained employment, where he remained until the death of Charles Williamson, the husband of Mary J. Williamson, which occurred in February, 1933. Plaintiff, at the request of Mary J. Williamson, then returned to Montana and to her home. In the year 1917 the right leg of Mary J. Williamson was amputated slightly below the knee, and during the year 1925 her left leg was amputated at the knee, making it necessary that she remain in a wheel-chair and that she have constant nursing, care and attention.
Mrs. Williamson was born August 8, 1860, making her 73 years of age at the time of her husband's death. On the death of her husband she turned to plaintiff for assistance and care and in the management of her property, consisting of ninety-eight acres of ranch property in Ravalli county, and certain livestock and other property situated thereon.
On March 12, 1924, Mary J. Williamson executed a will wherein she bequeathed the sum of five dollars to her husband and all of her remaining property, after the payment of her debts and funeral expenses, was devised and bequeathed to plaintiff. After the death of Charles Williamson and at the request of Mary J. Williamson, plaintiff left California and went to the home of Mary J. Williamson and assisted in the management and care of her property, and assisted in nursing and caring for her. In March, 1933, Mary J. Williamson and plaintiff entered into an agreement to the effect that if the plaintiff and his wife, Rhonda, would resign their positions in California and return to Montana to care for, help and assist Mary J. Williamson during her lifetime, the will made by her in March, 1924, would not be changed or revoked, and that upon her death plaintiff would receive and have all of her property of every kind, except that she requested that upon her death there be given out of her estate the sum of $500 to Rena Davis, which plaintiff then and there agreed would be done. In accordance with this agreement, plaintiff and his wife resigned their positions in California, returned to Montana and established their home at the home of Mary J. Williamson, and thereafter and until on or about the 4th of June, 1936, resided with her at her home, caring for, helping and assisting her, and caring for her wants and needs, and performing all the acts and things required of them under the terms of the agreement. Between the 10th day of July, 1936, to the date of her death on November 5, 1936, Mary J. Williamson did not reside with or receive help or assistance from plaintiff, but during this time plaintiff and his wife were ready, able and willing and offered to care for, nurse and assist her, but she remained away from the home of plaintiff as a matter of choice and without the consent of plaintiff.
On June 18, 1936, Mary J. Williamson, in violation of the agreement, made a later will, revoking the will made in March, 1924, and bequeathed and disposed of her property to her nieces, the defendants Catherine Eggum and Lorna Williamson. After the death of Mary J. Williamson, the plaintiff and his wife filed a claim against her estate for the reasonable value of the services rendered to her. The claim was rejected and plaintiff and his wife commenced an action based on the claim. Later this action was dismissed. The claim was filed and the action commenced upon the advice of their attorney, and the plaintiff was not advised of his right to prosecute the present action. Plaintiff and his wife did not inform their attorney that Mary J. Williamson had agreed to pay the reasonable value of their services, and the statement in the claim and in the complaint to that effect was included by the attorney upon his supposition that there was an implied contract on her part to pay the reasonable value of such services.
From these findings the court made conclusions of law and judgment, declaring that the defendants hold in trust, for the use and benefit of plaintiff, all of the property of the estate specifically described in the judgment subject to the payment of claims against, and costs of administration of the estate, and directed that defendants Eggum and Lorna Williamson execute proper conveyances to plaintiff.
In addition to the facts disclosed by the foregoing findings, it is conceded that in the spring of 1933 plaintiff and Mary J. Williamson entered into a written agreement, whereby she leased to plaintiff for a period of one year, ending February 1, 1934, her ranch, farm machinery and livestock in Ravalli county, reserving to herself the right "to reside in the house on said premises together with" plaintiff and his family. She was to have as rental two-fifths of the entire proceeds from the ranch, he to receive the remainder. At the expiration of that lease, plaintiff procured another written lease for a term of three years, by the terms of which the same property was leased to plaintiff for an annual rental of $500. This lease was silent as to the right of Mary J. Williamson to reside in the house; it did not expire until after the death of Mary J. Williamson.
The record also shows, without conflict, that Mary J. Williamson wrote several letters to defendant Catherine Eggum, in which she complained of the treatment she was receiving by plaintiff and his wife. The first letter in point of time was dated December 31, 1933, and before the second lease was entered into, in which she stated: In one dated October 14, 1934, it was said: In a letter dated October 29, 1934, she said: In one dated November 25, 1934, she said: In one dated December 23, 1934, she wrote: In one dated December 18, 1935, she wrote: "Kate, it seems they will never move out next year is the last for them it is just like living in Hell since they move here."
Defendants have made several specifications of error which, in the aggregate, raise two main questions. The first question presented by the specifications is whether the court erred in admitting in evidence oral communications made by Mary J. Williamson to plaintiff, to the effect that if plaintiff would care for her during her lifetime she would not change the will already executed by her and held by plaintiff, giving all of her property to plaintiff. The second question presented is whether the quality of the proof was sufficient to establish the agreement relied upon.
The answer to the first question calls for consideration of subdivision 3 of section 10535, Revised Codes. It provides that: ...
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... ... Erwin v. Mark, 105 Mont. 361, 73 P.2d 537 ... "This Court in Rowe v. Eggum, 107 Mont. 378, 87 P.2d 189, enforced an oral agreement of a decedent not to change a will made in favor of the plaintiff ... "The rule of ... ...
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